92 Decision Citation: BVA 92-10268
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-55 663 ) DATE
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THE ISSUES
Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
fracture of the left femur with limitation of motion of the
left knee joint.
Entitlement to service connection for residuals of a urinary
tract infection.
Entitlement to service connection for cellulitis, right
leg.
Entitlement to service connection for atherosclerotic
obstructive disease of the left leg.
ATTORNEY FOR THE BOARD
James A. Frost, Associate Counsel
INTRODUCTION
This matter came before the Board on appeal of a rating
decision in October 1991 by the Manila, Philippines,
Regional Office (hereinafter RO). The veteran had
recognized service from February 1945 to January 1946. The
notice of disagreement was received at the RO in November
1991. The statement of the case was issued in December
1991. The substantive appeal was received at the RO in
January 1992. The case was docketed at the Board in
February 1992 and is now ready for appellate review.
By rating action in February 1989, the RO denied service
connection for a fracture of the left femur with limitation
of motion of the left knee joint, finding that such injury
occurred subsequent to the veteran's service; in April 1989,
the veteran was duly notified of this decision; no timely
appeal was filed and the decision became final. In 1991,
the veteran submitted additional evidence in an attempt to
reopen his claim; the RO found that the additional evidence
was not new and material and the current appeal ensued.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that a left leg injury sustained on
February 9, 1946, was incurred during his service with the
United States Army. He further contends that cellulitis of
the right leg and atherosclerotic obstructive disease of the
left leg are secondary to a left leg injury in service.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth, it is the
decision of the Board that new and material evidence has not
been submitted to reopen a claim of entitlement to service
connection for a fracture of the left femur with limitation
of motion of the left knee joint and that the preponderance
of the evidence is against the veteran's claims of
entitlement to service connection for residuals of a urinary
tract infection, cellulitis of the right leg, and
atherosclerotic obstructive disease of the left leg.
FINDINGS OF FACT
1. The veteran had recognized service with the United
States Army from February 10, 1945, until January 17, 1946.
2. The agency of original jurisdiction denied entitlement
to service connection for a fracture of the left femur with
limitation of motion of the left knee joint in February
1989.
3. Additional evidence submitted since that time shows only
that the veteran continues to claim that the fracture was
sustained in service, information which was already of
record when the agency of original jurisdiction considered
this issue in 1989.
4. A urinary tract infection was not present in service or
until many years thereafter.
5. Cellulitis of the right leg was not present in service
or until many years thereafter.
6. Atherosclerotic obstructive disease of the left leg was
not present in service or until many years thereafter.
CONCLUSIONS OF LAW
1. Evidence received since the agency of original
jurisdiction denied entitlement to service connection for a
fracture of the left femur with limitation of motion of the
left knee joint in 1989 is not new and material and the
veteran's claim for that benefit has not been reopened. See
38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a).
2. The decision of the agency of original jurisdiction in
February 1989 denying the veteran's claim of entitlement to
service connection for a fracture of the left femur with
limitation of motion of the left knee joint is final. See
38 U.S.C. §§ 1110, 7105.
3. A urinary tract infection was not incurred in or
aggravated by service. See 38 U.S.C. §§ 1110, 5107.
4. Cellulitis of the right leg was not incurred in or
aggravated by service. See 38 U.S.C. §§ 1110, 5107.
5. Atherosclerotic obstructive disease of the left leg was
not incurred in or aggravated by service, nor was it
manifested to a compensable degree within one year of
separation from service. See 38 U.S.C. §§ 1101, 1110, 1112,
1113, 5107; 38 C.F.R. §§ 3.307, 3.309.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, we note that we have found that the veteran's
claims are "well-grounded" within the meaning of 38 U.S.C.
5107(a); effective on and after September 1, 1989. That is,
we find that he has presented claims which are not
implausible. We are also satisfied that all relevant facts
have been properly developed. No further assistance to the
veteran is required to comply with the duty to assist the
veteran mandated by 38 U.S.C. 5107(a).
The evidence which was of record when the RO considered the
issue of the left leg fracture in February 1989 may be
briefly summarized. Medical records disclose that, on
February 9, 1946, the veteran was thrown from a truck and
suffered a complete fracture of the external condyle of the
tibia and a chipped fracture of the internal epicondyle of
the left femur. He was hospitalized at a United States Army
facility. The veteran contended that he was still a member
of the United States military forces. However, the United
States Army Reserve Personnel Center reported to the
Department of Veterans Affairs (VA) that the veteran had
recognized guerrilla service from February 10, 1945, to
December 28, 1945, and recognized Philippine Army service
from December 29, 1945, to January 17, 1946. Therefore, the
RO found that the injury to the veteran's left leg on
February 9, 1946, occurred subsequent to his recognized
United States service. The RO indicated to the veteran that
certification of service is a prerogative of the Department
of the Army and the VA does not have authority to change a
decision as to recognized service dates.
Evidence added to the record since February 1989 includes
records of a private hospital showing that the veteran was
admitted in October 1989 and treated for cellulitis of the
right leg, atherosclerotic obstructive disease involving the
trifurcation vessels of the left leg and a urinary tract
infection. Also submitted was a peripheral vascular study
done at the Philippine Heart Center in October 1989 which
demonstrated left leg trifurcation vessel obstructive
disease. Finally, the additional evidence consisted of a
certification by a Philippine Army officer that the veteran
served in the Philippine Army, including the guerrilla
forces, from September 2, 1942, until July 31, 1947.
After a review of the record, we conclude that the
additional evidence which the veteran has submitted is "new"
in that it is not cumulative of evidence previously of
record, but that it is not "material." Assuming, without
deciding, that the additional evidence is relevant and
probative, there is no reasonable possibility that the
additional evidence, when considered in the context of all
the evidence, both new and old, would change the outcome.
Colvin v. Derwinski, U.S. Vet. App. No. 90-196 (March 8,
1991). This is because the additional evidence in no way
contradicts the RO's finding that the injury to the
veteran's left leg occurred subsequent to his recognized
United States military service. Accordingly, the veteran's
claim of entitlement to service connection for a fracture of
the left femur with limitation of motion of the left knee
joint is not reopened and the RO's February 1989 decision
remains final.
With regard to the veteran's remaining claims, he asserted
in his substantive appeal that cellulitis of the right leg
and atherosclerotic obstructive disease of the left leg,
which did not develop until many years after service, are
secondary to the left leg injury incurred in February 1946.
As service connection remains denied for that injury,
service connection is likewise not established for any
disabilities proximately due to or the result of that
injury. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107;
38 C.F.R. §§ 3.307, 3.309, 3.310(a).
Finally, there is no basis whatsoever in the record to
relate the urinary tract infection which was diagnosed and
treated during the veteran's hospitalization in 1989 to his
period of service and service connection for that condition
is therefore not established. 38 U.S.C. §§ 1110, 5107.
While we have considered the doctrine of affording the
veteran the benefit of any existing doubt with regard to the
issues on appeal, the record does not demonstrate an
approximate balance of positive and negative evidence as to
warrant resolution of this matter on that basis. 38 U.S.C.
§ 5107(b).
ORDER
New and material evidence not having been submitted to
reopen a claim of entitlement to service connection for a
fracture of the left femur with limitation of motion of the
left knee joint, that benefit sought on appeal is denied.
Service connection for a urinary tract infection, cellulitis
of the right leg, and atherosclerotic obstructive disease of
the left leg is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
ALBERT D. TUTERA
*38 U.S.C. § 7102(a)(2)(A) (1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1991),
a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.